Supreme Court backs cellphone privacy

In a sweeping endorsement for digital privacy, the U.S. Supreme Court ruled Wednesday that police must obtain a search warrant before rifling through an arrestee’s cellphone.

The highly-anticipated opinion in opinion in Riley v. California,which stems from the arrest of a San Diego gang member, will force a substantial shift in policing practices across the nation, especially in drug and gang investigations.

It could also mean a deluge of appeals in other cases involving warrantless cellphone searches — including one that was filed in a San Diego child pornography case within hours of the ruling.

“By recognizing that the digital revolution has transformed our expectations of privacy, today’s decision is itself revolutionary and will help to protect the privacy rights of all Americans,” Steven Shapiro, national legal director of the American Civil Liberties Union, said in a statement.

The justices unanimously held that today’s cellphones contain immense amounts of personal data — emails, photos, videos, bank statements and medical data — potentially years of material rivaling what would be found in a top-to-bottom search of a house. Therefore, the devices shouldn’t be treated the same as weapons or evidence in someone’s pocket or wallet seized during an arrest.

“Digital data stored on a cellphone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape,” the opinion read.

State authorities feared waiting for a warrant to search a phone’s contents would allow time for crucial evidence to get remotely erased, contending that technical methods to guard against that aren’t fail-safe.

The justices rejected those arguments, saying there’s little indication that remote wiping or data encryption is a prevalent problem. They pointed to cheap, easy solutions — such as removing the phone’s battery or placing the device in an aluminum-lined bag that blocks electronic signals.

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. … Privacy comes at a cost,” said Chief Justice John G. Roberts Jr., who wrote the opinion.

Also Wednesday

The justices added that warrants can be obtained swiftly, and that the law still leaves room for warrantless searches in such emergencies as thwarting a terrorist attack or rescuing a kidnap victim.

Law enforcement had a measured response to the ruling Wednesday, noting it will take some getting used to but won’t threaten public safety in the long run, and won’t halt the gathering of cellphone evidence.

“We need that information, we need that evidence, and it will just be a different and little bit slower process in obtaining it,” said Chula Vista police Capt. Gary Ficacci, echoing comments by his counterparts at other agencies.

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Getting a search warrant with just a phone call is already quite common. A typical cellphone search warrant takes no longer than an hour to write, said sheriff’s Cmdr. Mike Barletta. The warrant is read over the phone to a judge available to law enforcement around the clock, who verbally OKs the search.

Investigators went through a similar change last year, when the Supreme Court ruled that search warrants were needed to draw blood from DUI suspects.

Until now, deputies had been encouraged to use software to download the entire contents of an arrestee’s phone, to be analyzed later if necessary. But now such searches will be more limited in scope, Barletta said, and because a judge has approved them, the searches will be harder for defense lawyers to challenge.

Throughout the county, the change was being disseminated to the ranks in training bulletins and lineup talks. The District Attorney’s Office is drafting language that can be used in new cellphone search warrants.

David Leon Riley Jr. This handout photo is for a Kristina Davis story about cellphones.

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David Leon Riley Jr. This handout photo is for a Kristina Davis story about cellphones.

The opinion is based on an appeal from David Riley, who was pulled over for expired tags in August 2009. A San Diego police officer found two guns hidden in the engine compartment of his Lexus. The officer seized Riley’s smartphone and found videos and images depicting gang activity. A gang officer who took a deeper look found photos of a red Oldsmobile suspected of being used in a shooting in Skyline. No one had been hit, but the shots caused a car to crash.

The phone was instrumental in proving Riley’s gang ties, while prosecutors argued physical evidence bolstered the case against him. The first jury deadlocked but a second jury found him guilty of attempted murder and other charges.

His trial attorney, Edward Kinsey, argued unsuccessfully at the time that the cellphone search was unconstitutional. The case was later taken on by students at Stanford’s Supreme Court Litigation Clinic and argued by professor Jeffrey Fisher, one of the nation’s leading high court litigators.

Riley, 23, is serving a sentence of 15 years to life, a term made longer by the gang involvement.

His cellblock at Kern Valley State Prison in central California was on lockdown Wednesday morning and he was not allowed phone access. But his San Diego-based appellate attorney Pat Ford asked that a prison official deliver this message, written in big letters on a note: “We won.”

The opinion sends the case back to the state appeals court, which will likely hold a hearing to determine if the cellphone evidence affected the case.

The court could find the evidence didn’t affect the shooting conviction but did prove the gang allegations, in which case Riley could be resentenced. Or the evidence could be determined to have been prejudicial to the entire case, and the conviction would be vacated. It would then be up to the District Attorney’s Office to decide whether to try Riley again. (Riley’s four-year sentence for gun charges won’t be affected.)

It also applies to a similar case heard and considered alongside Riley’s, a case against a Boston-area drug dealer linked to a cache of drugs, cash and guns by a warrantless search of an older flip phone. He was sentenced to 22 years in prison.

Riley’s attorney, Ford, called the opinion a “huge victory for all those who value privacy,” aligning with a bedrock principle of our founding fathers.

“As time goes on, we start to lose or surrender our privacy rights a little at a time. Either we become scared from some event that has taken place, or technology by its very nature reduces people’s privacy interest. But it was time for the court to stand up and take a position on this,” he said.

The justices this term have favored law enforcement in other Fourth Amendment cases, including one that allows police to use anonymous tips to make traffic stops and another that allows a roommate to authorize a police search.

The court has been somewhat reluctant to issue sweeping rulings on the intersection of technology and the law.

But to the surprise of many observers, the court sent a strong, unanimous message on an issue that has divided courts across the country, while at the same time recognizing the inescapable effects of cellphones, “which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” the chief justice wrote.

The legal basis for the court’s ruling could have ramifications in other technology cases in the future, including the burgeoning area of government surveillance, said Hanni Fakhoury, staff attorney at Electronic Frontier Foundation, a nonprofit that advocates for privacy in technology.

“If you get the court thinking about that in other contexts," he said, "it’s going to be very important going forward."

It is one of the final decisions to be issued this term, which wraps up Monday.